I am not shocked that Louis Butler will apparently not be confirmed as a federal judge. I was not one of those people who believe that he was disqualified by losing two statewide races for the Wisconsin Supreme Court. We don't elect federal judges and that reflects a judgment about the role that popular sentiment should play in judicial selection.
I also believe that he is more than qualified by way of lawerly craft, i.e., he is quite smart and very good at the things that lawyers do. The problem was that he demonstrated, while on the state supreme court, that he has a rather expansive view of the judicial role and, while these terms are always tricky in judicial terms, tacks strongly to the left. Indeed, when it came time to explain those positions to the voters, he and his supporters just didn't do a very good job. (No, I don't think he lost because of the Reuben Mitchell ad. It actually may have helped him.)
Concern over these views is arguably less relevant to a seat on the district court since the opportunity of a trial judge to make law is limited. But a runaway district judge can do a lot of damage. I don't know that Louis Butler would have been such a judge but apparently enough of the right people thought so to scuttle his nomination.
I was not disturbed by the Butler nomination and would not have minded if the had been confirmed. Elections matter and he is the type of person I would expect President Obama to nominate. In fact, he was a pretty good nominee given the presumptions that I suspect control the administration's selection process. But, at this point, it would seem that the administration ought to reload and nominate someone else. It looks like this isn't going to happen.
It undoubtedly is correct that the disputed Reuben Mitchell ad does not explain Butler's defeat. The ad itself aired for a very, very short time before being pulled due to the controversy. The media coverage of the ad was favorable to Butler. Most people with whom I have discussed it did not see the actual ad.
Rick is quite gracious in describing his differences with Louis Butler. A review of key cases during his tenure on the Supreme Court casts Louis Butler front and center in some examples of horrible jurisprudence. While I agree with the Journal Sentinel editorial board that he deserved an up-or-down vote, an argument can be made that justice has been served.
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Evidently it's a little premature to say that Louis Butler will not be confirmed as a federal judge.
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